The Florida Supreme Court has reinstated a suit against a lawyer accused of making defamatory comments when questioning a potential witness in a pending lawsuit.

The court ruled in the case of lawyer Arthur Rodgers Traynor, who was initially hired to defend a defamation suit by a plaintiff who said he had been wrongly accused of supplying prostitutes to a potential customer, the Associated Press reports. The plaintiff then sued Traynor for defamation, claiming the lawyer was also making prostitution assertions while questioning potential witnesses.

The court ruled the lawyer was not entitled to absolute immunity, report AP and the Legal Profession Blog. Instead, qualified immunity applies, requiring the plaintiff to show “express malice” to succeed, the court said.

For qualified immunity to apply, the lawyer must be making ex parte, out-of-court statements that “bear some relation to or connection with the subject of inquiry in the underlying lawsuit,” the opinion (PDF) said. To show express malice, the plaintiff will have to demonstrate that the lawyer’s primary motive in making the statements was an intent to injure the plaintiff’s reputation, according to the decision.